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Pending before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 ("International Tribunal"), is a "Motion by the Defendants on the Production of Evidence by the Prosecution", filed with the Registry on 5 May 1997, on behalf of all four accused persons (Official Record at Registry Page ("RP") D3528-D3533) (the "Motion"). The Office of the Prosecutor (the "Prosecution") filed its "Response to the Motion by the Defendants on the Production of Evidence by the Prosecution" on 9 May 1997 (RP D3616-D3619) (the "Response").

Argument on the Motion was heard by the Trial Chamber on 29 May 1997, during which Counsel for the four accused persons (the "Defence") and the Prosecution (together, the "Parties") made their oral submissions. The Trial Chamber reserved its Decision on the matter for a later date.

HAVING CONSIDERED the written submissions and oral arguments of the Parties,

1. The following provisions of the Rules of Procedure and Evidence of the International Tribunal (the "Rules") are relevant to the determination of the present issue:

2. The Defence suggests that the International Tribunal adopt, by virtue of its powers under Sub-rule 89(B), a rule of evidence preventing the Prosecution from calling and examining a witness whose prior statement has not been disclosed in compliance with Sub-rule 66(A). Further, the Defence asserts that a rule should be adopted by the International Tribunal whereby the Prosecution, before serving any additional evidence, must be granted leave by the Trial Chamber to serve such evidence. The Defence proposes that the rule provide that the Prosecution must apply for such leave in writing with no less than seven days notice and providing several details. Finally, the Defence requests that the International Tribunal adopt a rule which states that nothing in the above mentioned new procedure shall derogate from the continuing duty of the Prosecution to provide the Defence with exculpatory material.

3. The Defence asserts that the Prosecution is required to turn over all supporting material as well as prior statements of those witnesses that the Prosecution intends to call at trial, as soon as practicable, in accordance with the Decision on Motion by the Accused Zejnil Delalic for the Disclosure of Evidence (Trial Chamber II (Judge McDonald presiding), the Prosecutor v. Delalic et al., IT-96-21-T, 26 September 1996, RP D1444-D1452) ("Disclosure Decision"). According to the Defence, the Prosecution has, in certain cases, served the Defence with additional statements of witnesses whose names appear on the Prosecution witness list, without any further explanation. The Defence claims that, on other occasions, the Prosecution has not even provided the Defence with any statements of the witnesses who were about to testify. This, the Defence argues, is in clear violation of the obligations incumbent upon the Prosecution under Sub-rule 66(A).

4. The Defence argues further that, often, material is handed over to it by the Prosecution a very short time before the relevant witness gives evidence. No explanation is provided as to the purpose of this material, so that the Defence does not have an "adequate time and facilities for the preparation of its Defence" as is required by Article 21, paragraph 4(B) of the Statute of the International Tribunal (the "Statute"). The Defence asserts that this untimely service of documents and the failure to give notice of what a witness may say, constitutes a violation of the disclosure obligations of the Prosecution, and endanger the right of all of the accused to a fair trial, guaranteed by Article 20, paragraph 1, of the Statute.

5. The Prosecution in its Response asserts that it has complied with all of its obligations under the Statute and the Rules. The Prosecution states that it has provided large amounts of material, pursuant to its obligations of disclosure, to the Defence and will continue to do so as it receives new relevant material. The Prosecution states that it has acted, and will continue to act, in good faith, and that it is unable to respond more specifically to the Defence’s Motion. During the oral pleadings, the Prosecution further stated that there does not exist an obligation on its part to take a statement from all or any of the witnesses. The Prosecution, however, wishes to emphasise that it has always tried to give the Defence notice of what each witness is going to testify about. Finally, the Prosecution asserts that it has made a concerted effort to disclose as soon as practicable all additional material which it gathers and which it intends to use at trial, and has therefore complied with its obligations under Sub-rule 66(A).

6. The adoption of substantive rules of evidence is not within the competence of this Trial Chamber, as this can only be done within the confines of Article 15 of the Statute and Rule 6 of the Rules. It is, however, the case that, under Sub-rule 89(B) of the Rules, the Trial Chamber has the power to apply those rules of evidence which it considers will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

7. This notwithstanding, the Sub-rule starts with the important caveat: "[iCn cases not otherwise provided for in this Section", thus indicating that it is limited to Part Six, Section 3 of the Rules, entitled "Rules of Evidence", and does not refer to the previous Sections, including that concerning disclosure. If the Defence wishes to raise a perceived violation by the Prosecution of its obligations of disclosure, this must, therefore, be done within the boundaries of those provisions of the Rules laying down those disclosure obligations. Rules 66-68 do in fact provide the necessary provisions on the disclosure of evidence by both the Prosecution and the Defence and thus the application of Sub-rule 89(B) is not appropriate.

8. Although the Motion has been inappropriately raised, its essence in fact alleges a violation of the Prosecution’s obligations of disclosure under Sub-rule 66(A) of the Rules. The Prosecution, on the other hand, contends that it has and continues to fulfil its obligations in good faith. The Trial Chamber will, in the interests of justice, briefly address the challenge raised by the Defence.

9. It is part of the duties of the Trial Chamber, according to Article 20 of the Statute, to ensure that a trial is fair and expeditious. It is, therefore, within the competence of the Trial Chamber to exclude any piece of evidence sought to be introduced by the Prosecution, if indeed it seeks to do so, without having given the Defence the opportunity to examine that piece of evidence beforehand and thereby enable it to prepare a proper defence. This power is well expressed in Sub-rule 89(D) of the Rules, which provides for the exclusion of evidence if its probative value is substantially outweighed by the need to ensure a fair trial. It is also within its inherent power to control the conduct of proceedings that the Trial Chamber may grant or reject an objection made by the Defence to the admission of any piece of evidence which it claims it has not had sufficient time to examine.

10. The wording of Sub-rule 66(A) is clear and unequivocal. The Prosecution has a duty to disclose to the Defence all statements taken from the accused or any of the Prosecution witnesses. This obligation has been emphasised by Trial Chamber I in its Decision on the Production of Discovery Materials, of 27 January 1997, in the Blaskic case (The Prosecutor v. Tihomir Blaskic, IT-95-14-PT, (RP D3177 - D3203), para. 38), in which it stated that all previous statements of all Prosecution witnesses, in whatever form, must be disclosed to the Defence. The Trial Chamber accepts the Prosecution’s contention that it has up until the present day fulfilled its obligations under Rule 66 in good faith, either by disclosing the prior statements of its witnesses or, in the absence of such statements, by giving notice of what each witness will testify about.

11. This Trial Chamber has rendered a previous decision stating that it cannot and will not place a cut off date on the disclosure of evidence by the prosecution. (See Decision on the Applications Filed by the Defence for the Accused Zejnil Delalic and Esad Landzo on 14 February 1997 and 18 February 1997 Respectively, 21 February 1997, (RP D2776-D2784), para. 14, referring to the Disclosure Decision, at para. 4) This is necessarily so when the Prosecution continues to discover new evidence that is relevant to its case and it must, in such circumstances, disclose such evidence, when in the form of witness statements, as soon as practicable, in accordance with Sub-rule 66(A).

12. Finally, the Trial Chamber notes that, should problems arise during the course of trial, relating to the absence of statements taken from a Prosecution witness, the Trial Chamber will consider such problems at that time. Before hearing from a Prosecution witness, the Trial Chamber may ensure that there has been full disclosure to the Defence of any prior statements taken from him, as required by the Rules.

HEREBY FINDS that it is not for the Trial Chamber to adopt a new rule of evidence under Sub-rule 89(B), as this sub-Rule is inapplicable to the present case and the existing rules are clearly sufficient to preserve the right of the accused to prepare their defence adequately,

and, therefore, REJECTS the Motion.

Done in English and French, the English text being authoritative.

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Adolphus G. Karibi-Whyte

Presiding Judge

Dated this eighth day of September 1997,

At The Hague,

The Netherlands.

[Seal of the Tribunal]